[00:00:00] Speaker 02:
Case number 20-5382, Berthwerks et al at balance versus United States Department of the Interior et al.

[00:00:07] Speaker 02:
Mr. Flynn for the at balance, Mr. Toth for the at police, Ms.

[00:00:11] Speaker 02:
Dawson for the interveners.

[00:00:19] Speaker 06:
Council, I do not, should I be seeing a council at this point?

[00:00:27] Speaker 06:
There we are, okay.

[00:00:29] Speaker 06:
Good morning, Council.

[00:00:30] Speaker 06:
We apologize for the remote arrangements, but thank you for your flexibility in making this work.

[00:00:37] Speaker 06:
Mr. Flynn, whenever you're ready.

[00:00:41] Speaker 07:
Good morning, Your Honors.

[00:00:43] Speaker 07:
May it please the Court, I'm Roger Flynn, Council for Planned Appellant Earthworks.

[00:00:49] Speaker 07:
The Court's permission like to reserve about five minutes or so for rebuttal.

[00:00:54] Speaker 07:
Just at the outset, I'd like to thank the clerk's office for arranging this on the fly in the snowstorm from our hotel room here in Washington.

[00:01:01] Speaker 07:
So I really appreciate their awesome work this morning.

[00:01:06] Speaker 07:
I would first like to discuss how we got here and the fundamental issue of how the Interior Department's complete reversal of its existing millside policy, which existed for years when it issued the 2003 rule, was not a logical outgrowth

[00:01:23] Speaker 07:
of the 1999 proposed rule when that proposed rule did not mention at all the remote possibility that the agency would overturn its existing policy set by the Secretary of Interior.

[00:01:37] Speaker 07:
That policy in 1997 and then the 1999 proposed rule was binding, immediately binding on all agency offices in the field.

[00:01:47] Speaker 07:
Congress stayed that essentially for two years.

[00:01:51] Speaker 07:
out of fairness, and they said it couldn't be applied for mining plans that were in the works at the time.

[00:01:57] Speaker 07:
They did not overrule it, they did not abrogate it, and they left it in place for the next three or four years.

[00:02:03] Speaker 06:
We're talking about a distinct interpretive question, pretty straightforward, about the meaning of the words on the page 30 USC 42.

[00:02:19] Speaker 06:
which either requires a one-to-one correspondence of mill sites to mines or requires a five acre total or doesn't require either.

[00:02:36] Speaker 06:
That's what the dispute is about.

[00:02:40] Speaker 06:
Different people took different positions.

[00:02:42] Speaker 06:
I mean, you think it wasn't foreseeable that they would take the position one way or the other on that seemingly unitary question?

[00:02:52] Speaker 07:
Well, I think the case law that we cited from this circuit talks about when the agency, the public, not plaintiffs represented by council, but the public has to have an idea

[00:03:04] Speaker 07:
that the agency was about to reverse itself and give an opportunity to comment upon that potential reversal.

[00:03:12] Speaker 05:
Well, that's exactly what happened.

[00:03:13] Speaker 05:
I mean, they put out the original proposal.

[00:03:17] Speaker 05:
They took public comment.

[00:03:19] Speaker 05:
Apparently, the comments opposing the proposal were persuasive, and so they withdrew the proposal.

[00:03:29] Speaker 07:
Well, if the public had been given the opportunity

[00:03:32] Speaker 07:
to comment upon a potential reversal, we would have done so.

[00:03:36] Speaker 05:
But you mean reversal?

[00:03:37] Speaker 05:
You mean decision not to go forward with the proposal?

[00:03:43] Speaker 07:
Well, the proposal in 1999 was just to codify the existing policy set by the secretary in 1997.

[00:03:50] Speaker 07:
That was the policy.

[00:03:52] Speaker 07:
The agency argues on standing on the APA and on NEPA that all they did in 03 was go back to the status quo.

[00:04:00] Speaker 07:
The status quo- Isn't that always an option?

[00:04:04] Speaker 04:
Isn't that always an option?

[00:04:05] Speaker 04:
You've got a rulemaking, they put out the proposal and they decide not to do it.

[00:04:08] Speaker 04:
That's a logical outgrowth.

[00:04:11] Speaker 07:
Well, you know, interestingly, the rule that was there prior to 1997 in the regulations in the CFR, it was at that time called 43 CFR 3844.

[00:04:22] Speaker 07:
That had nothing about limits on mill size, either pro or con.

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So there was no inclination.

[00:04:30] Speaker 07:
As we pointed out in the case law, the public shouldn't have to divine the secretary's thinking that it would come up with the proposal that was exactly opposite of what was on the books.

[00:04:42] Speaker 05:
The general counsel gave an opinion in 97, and then the secretary proposed to adopt that through the CFR and then decided not to do so.

[00:04:56] Speaker 05:
Why is the general counsel's opinion

[00:04:59] Speaker 05:
any more binding than, well, why is it binding at all?

[00:05:05] Speaker 07:
It was, Your Honor, it was not just the solicitor of the Interior Department, the General Counsel, but that at the bottom of it, it was signed, co-signed, so to speak, by the Secretary of Interior, Secretary Babbitt.

[00:05:18] Speaker 07:
So when the Secretary signs that, it becomes a directive on the entire Interior Department

[00:05:24] Speaker 07:
No agency office in the field could violate that.

[00:05:28] Speaker 05:
So what do we have by way of instances, I don't think you showed us any, in which the department, acting on that interpretation in the co-signed opinion letter, denied applications?

[00:05:42] Speaker 07:
The district court made a big point about that.

[00:05:46] Speaker 07:
But what was happening is for the first two years, 97 to 99, roughly,

[00:05:50] Speaker 07:
Congress stepped in and said, well, you can't apply that.

[00:05:53] Speaker 05:
Then there was a gap period when there was no appropriation bar.

[00:05:59] Speaker 07:
Right.

[00:05:59] Speaker 07:
There was about four years or so there, three or four years.

[00:06:02] Speaker 05:
Any examples there of applying the policy?

[00:06:06] Speaker 07:
Well, no, because the mining industry knew that it would be illegal.

[00:06:09] Speaker 07:
So the mining industry didn't apply for excess mill sites or patents.

[00:06:13] Speaker 07:
There was a moratorium, but many were grandfathered in.

[00:06:16] Speaker 07:
So if the speed limit is 55 and no one goes over 55, that doesn't mean there's not a speed limit.

[00:06:22] Speaker 07:
So the industry knew that anything they submitted within those three or four years would be illegal.

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It would be instantly denied by the Interior Department.

[00:06:30] Speaker 07:
So the fact that no mines were denied or limited based on the 97th Secretarial Opinion doesn't mean that it didn't exist.

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It was binding.

[00:06:41] Speaker 05:
And that- What was it?

[00:06:45] Speaker 05:
How many applications have been received since, well, to date?

[00:06:54] Speaker 07:
Well, how many mining projects have been submitted since 2003?

[00:06:59] Speaker 07:
Hundreds or dozens, basically.

[00:07:02] Speaker 07:
But in that gap, I think you were focusing on Judge Ginsburg, that three or four year gap.

[00:07:06] Speaker 07:
There were none because it would have no mining company would submit something knowing it would be denied by the Interior Department.

[00:07:14] Speaker 05:
You just said that once the department switched his position, they did receive a raft of applications for additional locations.

[00:07:24] Speaker 05:
Is that correct?

[00:07:26] Speaker 07:
Yeah, that's what's going on right now.

[00:07:27] Speaker 07:
We pointed out one mine in Arizona submitted hundreds of mill site claims.

[00:07:32] Speaker 07:
That's what they're doing out in the field.

[00:07:34] Speaker 07:
based on the 03.

[00:07:35] Speaker 07:
But when the 03 rule came in, we had no idea they were about to switch positions.

[00:07:40] Speaker 07:
No idea whatsoever.

[00:07:41] Speaker 07:
Can I ask you a question?

[00:07:42] Speaker 07:
Yes.

[00:07:43] Speaker 04:
The 2003 rule says, this is at JA 817, during fiscal year 2002, claimants recorded 15,407 new mining claims and sites.

[00:07:54] Speaker 04:
So how is that consistent with there were none?

[00:07:58] Speaker 07:
Oh, uh, you can file mining claims.

[00:08:00] Speaker 07:
I thought the question from judge Ginsburg was, did anyone propose mining operations on claims without, without asking for mill sites?

[00:08:09] Speaker 04:
There were 15,000 of no mill sites.

[00:08:13] Speaker 07:
That's my understanding.

[00:08:14] Speaker 07:
I, they didn't provide, you know, all the list of those claims.

[00:08:19] Speaker 07:
Um, but since, uh, 2003, they've been approving operations with the additional, uh, mill sites.

[00:08:26] Speaker 07:
But during that window of three or four years, Congress stated for a couple of years, there was none as far as I know.

[00:08:34] Speaker 07:
And so that's the issue.

[00:08:37] Speaker 07:
The question is, in 03, what was the status quo?

[00:08:41] Speaker 07:
So they're saying we didn't have to really look at any environmental impacts.

[00:08:45] Speaker 07:
We didn't have to notify the public, because all we were doing was going back to the status quo.

[00:08:50] Speaker 07:
But the status quo was the secretarial directive from 97.

[00:08:56] Speaker 07:
all we had to go on.

[00:08:58] Speaker 07:
We didn't know if the agency was going to reverse it.

[00:09:01] Speaker 05:
The secretarial directive was not the product of any rulemaking, was it?

[00:09:06] Speaker 07:
No, secretarial directors are not rulemaking.

[00:09:09] Speaker 07:
They're binding upon the agency out in the field.

[00:09:13] Speaker 05:
And as what happened here... Directions of the field offices, as it were.

[00:09:19] Speaker 07:
Yes, sir.

[00:09:19] Speaker 07:
And then in 99, they proposed to, with slight modification, codify that

[00:09:24] Speaker 07:
in the regulation, but there was no indication, nothing in the regulatory, the preamble or the notice or anything saying, please comment on us reversing this.

[00:09:35] Speaker 07:
Why would the secretary's office in 1999 propose or even let the public think that it was going to reverse itself?

[00:09:44] Speaker 07:
It only reversed itself when the new administration came in in 01 and then only after two more years.

[00:09:49] Speaker 07:
And so there's this black hole for four years.

[00:09:52] Speaker 07:
We didn't know anything.

[00:09:53] Speaker 07:
We had no idea to comment.

[00:09:55] Speaker 07:
They did that environmental assessment.

[00:09:57] Speaker 07:
There was no public notice.

[00:09:58] Speaker 07:
We didn't even know they were doing it, let alone doing the ruling.

[00:10:01] Speaker 04:
Could it the secretary have just reversed that directive, the new secretary, and you would have had no notice and comment either?

[00:10:11] Speaker 04:
I'm saying, putting aside the rulemaking, they had a policy on the books that was signed by Bruce Babbitt, the former secretary.

[00:10:18] Speaker 04:
Couldn't the new secretary just reverse that, sign a new directive that's not a policy anymore?

[00:10:23] Speaker 04:
And you would have had no notice and comment on that.

[00:10:26] Speaker 07:
Well, that's what happened in the way the timeline worked.

[00:10:29] Speaker 07:
In October of 03, the solicitor and the secretary, the new secretary, Gail Norton, issued the 03 opinion

[00:10:37] Speaker 07:
and then which reversed the 97 opinion from the secretary and then a few days later the environmental assessment came out again didn't know they were working on it which you normally have to let the public at least comment sometimes and then about 10 days two weeks later out comes the 03 rule which completely reversed everything it was one two three out of the blue we had no idea

[00:11:00] Speaker 06:
OK, so the actual sequence of events might come close to Judge Pan's hypothetical question, but what's the answer to that?

[00:11:11] Speaker 06:
So Secretary Norton writes a memo saying we're going back to the pre-97 understanding, or I know that might be contested, the understanding that

[00:11:29] Speaker 06:
met the many, many people who were complaining about the 97 order were advocating for, which is no one-to-one and no five acre aggregate limit.

[00:11:43] Speaker 06:
That was the debate for years.

[00:11:48] Speaker 07:
Right, but under the APA process, it's not just counsel for the industry or counsel for

[00:11:54] Speaker 07:
Earthworks and the other conservation groups, there has to be public notice.

[00:12:00] Speaker 06:
Not for an interpretive rule.

[00:12:07] Speaker 07:
Exactly.

[00:12:08] Speaker 07:
We're talking about the rulemaking in 03, the final rule.

[00:12:12] Speaker 07:
That is what was not a logical outgrowth of the proposed rule.

[00:12:16] Speaker 07:
And so what we ask on remand, and I see I'm cutting into my rebuttal time,

[00:12:20] Speaker 07:
But on remand, that they do a rulemaking and have public notice and actually look at the environmental impact of reversing its position, which they didn't do any environmental review, zero.

[00:12:34] Speaker 07:
So I have about three more minutes to stay for rebuttal.

[00:12:38] Speaker 06:
You want to get to the merits a little bit.

[00:12:42] Speaker 06:
Frankly, I'm more interested in that.

[00:12:45] Speaker 07:
OK, yes, Your Honor.

[00:12:47] Speaker 07:
Basically, the agency is manufacturing an ambiguity here about how many mill sites you get.

[00:12:55] Speaker 07:
The mining law, the plain language is very clear.

[00:12:57] Speaker 07:
Mill sites are tied to the development of the load claim.

[00:13:02] Speaker 07:
And even if you could think that there was an ambiguity under Chevron, step two, the industry, I mean, agencies always want to go to Chevron step two, saying there's an ambiguity.

[00:13:13] Speaker 07:
But as we pointed out, under public land law,

[00:13:18] Speaker 07:
1800s.

[00:13:18] Speaker 07:
The Supreme Court, time and time again, says if there is an ambiguity, and let's just assume there is.

[00:13:24] Speaker 07:
We know the commentary for 100 years, including that to Congress, said there is no ambiguity.

[00:13:31] Speaker 07:
You're limited on mill sites.

[00:13:33] Speaker 07:
But even if there is an ambiguity, that is ruled in favor, presumed, interpreted

[00:13:40] Speaker 07:
in favor of the government in limiting the grant.

[00:13:44] Speaker 04:
What's your best argument for why your reading is unambiguous?

[00:13:48] Speaker 04:
Because I can see that you have a strong reading of this statute.

[00:13:53] Speaker 04:
But what's your best argument for why it's unambiguously correct?

[00:13:57] Speaker 07:
Well, we look, I mean, history matters in this case.

[00:14:00] Speaker 07:
And we look at the original language and what was going on in 1872.

[00:14:04] Speaker 07:
The opinion talks about modern mining and we need more acres.

[00:14:08] Speaker 07:
Yes, the mining industry needs thousands of acres

[00:14:10] Speaker 07:
of mill site claims.

[00:14:12] Speaker 07:
But in 1872, they didn't.

[00:14:14] Speaker 07:
If you look at all the analysis from the Interior Department early decisions through the commentary into the 1960s and 70s, everybody knew that back in 1872, you didn't need much land.

[00:14:26] Speaker 07:
There wasn't big waste dumps.

[00:14:27] Speaker 07:
There wasn't big processing.

[00:14:29] Speaker 07:
The 20 acres for the mining claim, and then for each 20 acres, you got five acres of site.

[00:14:35] Speaker 07:
That was more than enough.

[00:14:37] Speaker 07:
Congress did not contemplate at all that they needed all these acres.

[00:14:42] Speaker 04:
So what if we agree with you, maybe the 1872 Congress intended it to work that way, but what they wrote in the statute doesn't unambiguously say that.

[00:14:51] Speaker 04:
I think the only way you win is if your reading is unambiguously correct.

[00:14:58] Speaker 07:
Right.

[00:14:58] Speaker 07:
And that's right.

[00:14:59] Speaker 07:
I think then you go, as all the briefs said, you go to the standard tools of statutory construction.

[00:15:06] Speaker 07:
And in all those railroad cases and into the 20th century, the statutory tool of construction was any ambiguities when the feds are granting away public resources to private entities, mining companies, railroad companies back in then, any ambiguity, even if there is one, is resolved in favor of limiting the grant.

[00:15:29] Speaker 07:
And the district court didn't talk about that.

[00:15:31] Speaker 07:
The 97th opinion mentioned that.

[00:15:34] Speaker 07:
Nobody else does.

[00:15:35] Speaker 07:
Everyone just seems to have forgotten that that is a primary tool of statutory construction when you have ambiguities.

[00:15:42] Speaker 07:
And so even if you get to step on step two, you really don't, because under step one, Judge Katz, I think your recent decision in the employer's case basically said you look to statutory tool to determine ambiguity.

[00:15:57] Speaker 07:
And in that case, you limit the grant, not expand the grant.

[00:16:02] Speaker 07:
And that's the problem here.

[00:16:04] Speaker 06:
Is your preferred position one mill site per mining site or total of five acres per one mining site?

[00:16:16] Speaker 07:
I think the 1999 proposed rule clarified a little the 97 opinion and said because mining companies always want to maximize their mining claim to go up to the full 20 acres,

[00:16:28] Speaker 07:
And therefore you got five acres for the 20.

[00:16:31] Speaker 07:
Now they argue that, well, the courts have allowed people to file multiple mining claims.

[00:16:35] Speaker 07:
That's fine.

[00:16:36] Speaker 07:
We agree with that.

[00:16:37] Speaker 07:
So every time you file a new mining claim, another 20 acres, you get another five.

[00:16:42] Speaker 07:
You get three 20 acres, you get 15 acres.

[00:16:44] Speaker 07:
And that's the way it was set up back in 1872.

[00:16:47] Speaker 07:
And that was the rule for decades.

[00:16:50] Speaker 06:
So what sense does your rule make if

[00:16:57] Speaker 06:
the related rules and practices are that the mining company can file, can make as many claims and seek as many patents as it wants.

[00:17:12] Speaker 06:
And it can subdivide those claims as much as it wants.

[00:17:17] Speaker 07:
Oh, yeah.

[00:17:18] Speaker 07:
That's the, uh, I'm sorry.

[00:17:21] Speaker 06:
No, I mean, I just, you know, if, uh,

[00:17:26] Speaker 06:
If the number and configuration of the mining claims is unlimited, it just seems like, what are we fighting over here?

[00:17:38] Speaker 07:
Well, that's the minuscule mine claim theory, which the district court rejected as unpersuasive.

[00:17:46] Speaker 07:
And so essentially, mining companies always want to maximize their claim.

[00:17:50] Speaker 07:
In 1872, you couldn't file a claim of a few feet.

[00:17:53] Speaker 07:
You would have been laughed out of the saloon that night.

[00:17:56] Speaker 07:
So everyone wanted to maximize their claims.

[00:17:59] Speaker 07:
From 1866 to 1872, they actually expanded.

[00:18:02] Speaker 07:
They increased the amount of land.

[00:18:04] Speaker 07:
You could follow along the veiner load.

[00:18:06] Speaker 07:
It was all underground mining at that time.

[00:18:08] Speaker 07:
And so you would follow along the veiner load up to 1,500 feet by 600 feet.

[00:18:14] Speaker 07:
And then you could go

[00:18:15] Speaker 07:
you found more, okay, I'll file another claim and get more.

[00:18:20] Speaker 06:
But if they're mining the, I don't know, sorry for the mixed metaphor, but if they're going after the low-hanging fruit at that time and no one needs the five-acre limit is not really a constraint,

[00:18:39] Speaker 06:
But that practice doesn't really tell us one way or the other what happens if they need more area for the millstone.

[00:18:54] Speaker 07:
Right, Ron.

[00:18:54] Speaker 07:
I think one of the issues, I think it was in the briefing, in both opinions actually, recognize that this is not the end of the world for the mining industry, that it's going to shut down open pit mining or anything.

[00:19:05] Speaker 07:
And I've been personally involved in cases where you do a land exchange.

[00:19:09] Speaker 07:
So let's say you get a hundred acres for mill sites, but you need a thousand.

[00:19:12] Speaker 07:
Oh, the mine is dead.

[00:19:14] Speaker 07:
No.

[00:19:15] Speaker 07:
So that extra 900 mining companies do land exchange.

[00:19:17] Speaker 07:
They can do sales.

[00:19:19] Speaker 07:
Congress has stepped in and ordered land exchanges.

[00:19:23] Speaker 07:
And so there are many ways for mining companies to operate profitably in the West.

[00:19:27] Speaker 07:
The key is they wouldn't have a statutory right.

[00:19:31] Speaker 07:
Cause when you have a statutory right to dump thousands of acres of mine waste,

[00:19:35] Speaker 07:
That cuts out all the other public uses.

[00:19:38] Speaker 07:
It eliminates the federal discretion.

[00:19:40] Speaker 07:
So all we're really asking for when you take all the legalese out of this is that under the law, there are competing uses on public lands.

[00:19:49] Speaker 07:
And so the statutory rights of the mining law are limited.

[00:19:52] Speaker 07:
You get some, but you don't get this essentially thousands of acres.

[00:19:56] Speaker 07:
And therefore, the Interior and the Forest Service agencies can then have the discretion

[00:20:02] Speaker 07:
whether to allow the extra waste dump.

[00:20:06] Speaker 07:
But not as a statutory right.

[00:20:08] Speaker 07:
That's the issue.

[00:20:09] Speaker 07:
It's a property right under the Fifth Amendment that the industry wants here.

[00:20:13] Speaker 07:
If the mining law doesn't give it to them, and the agency's discretion for these extra thousands of acres, we think it's been stripped away by the 03 rule.

[00:20:24] Speaker 07:
That's the problem.

[00:20:26] Speaker 07:
It's stripped it away with no public notice and no environmental review when you boil it all down.

[00:20:31] Speaker 04:
I just think your strongest argument here that is that structurally your reading is the one that makes the most sense or maybe the only one that makes sense because I think everybody agrees that the mill sites are linked to a mining claim.

[00:20:49] Speaker 04:
And the mining claim is limited in size.

[00:20:52] Speaker 04:
The mining claim is either 1500 by 600 feet for a load claim or it's 20 acres for a place or claim.

[00:21:00] Speaker 04:
And so structurally,

[00:21:03] Speaker 04:
I think your argument would be, it cannot be that they limited the mining claim, but said the mill site that's attached to it can be infinity, as long as it's used for mining and mill site purposes.

[00:21:15] Speaker 04:
The size of the mining claim is limited.

[00:21:16] Speaker 04:
This provision limits the size of the mill site to five acres.

[00:21:21] Speaker 04:
And if you read it the other way, that means land use for mill sites up to infinity, as long as it's used for mining and mill site purposes.

[00:21:29] Speaker 04:
And structurally, that's not the way you can read this.

[00:21:32] Speaker 07:
statue.

[00:21:33] Speaker 07:
That's right.

[00:21:34] Speaker 07:
That's right.

[00:21:35] Speaker 07:
I mean, basically, it's as long as you reasonably related to mining, that's the phrase you can have.

[00:21:41] Speaker 07:
I mean, out in the West, we have mill sites covering thousands and thousands of acres, double, triple, quadruple, the lands in the mine pit.

[00:21:49] Speaker 07:
That's not how the mining law was set up.

[00:21:51] Speaker 07:
The actual, and this showed up in the 1969-70 congressional report,

[00:21:56] Speaker 07:
the 1979 congressional report, they all said, you got 20 acres for the mine claim, and you have more, you can get more, and you get five acres for mill sites, 20 to five, 40 to 10, 60 to 15, on and on.

[00:22:10] Speaker 07:
That's the way the law was set up.

[00:22:12] Speaker 07:
They weren't giving unlimited mill site acres in 1872.

[00:22:14] Speaker 07:
It didn't cross anyone's mind.

[00:22:17] Speaker 07:
You read all the professors, the Interior Department decisions, the industry themselves for decades says, we have a problem.

[00:22:24] Speaker 07:
We've got to go to Congress and change this.

[00:22:27] Speaker 07:
Congress, for whatever reason, did not change it, even though they were told they needed to change that.

[00:22:31] Speaker 07:
So the bottom line is the agency did here, by regulation, what Congress chose not to do.

[00:22:37] Speaker 07:
And that, I think we can all agree, is not what an agency can do.

[00:22:41] Speaker 07:
They do not have the power to remake the law unless Congress said they could.

[00:22:47] Speaker 07:
And that's a problem.

[00:22:49] Speaker 05:
Before the Leshy opinion, the department was operating

[00:22:53] Speaker 05:
on what you say is the Muslim reading.

[00:22:56] Speaker 05:
And I think they were doing so for 50 years.

[00:22:58] Speaker 05:
Is that correct?

[00:23:00] Speaker 07:
Roughly since World War II, the BLM in its current form was constituted right after World War II.

[00:23:05] Speaker 07:
And so as the thing what happened after World War II, the mines got big, no longer.

[00:23:10] Speaker 07:
There's very few underground mines anymore.

[00:23:11] Speaker 07:
These mines are now covering 8,000, 10,000 acres, most of that being waste dump and chemical processing.

[00:23:18] Speaker 07:
And so, yes, for those decades between World War II and the 90s,

[00:23:23] Speaker 07:
They were doing that.

[00:23:24] Speaker 07:
And then the Secretary of Interior in 1993 came in and said, wait a minute, this violates the mining law.

[00:23:31] Speaker 07:
So then they had their staff.

[00:23:33] Speaker 07:
They looked at it for a number of years.

[00:23:35] Speaker 07:
And then they came out and did it in 97.

[00:23:38] Speaker 07:
All of that stuff was happening in Idaho, in Nevada, out in the field.

[00:23:42] Speaker 07:
We didn't approve that.

[00:23:44] Speaker 07:
That's not what's going on here.

[00:23:46] Speaker 07:
Or it's legally going on.

[00:23:48] Speaker 05:
They did approve it.

[00:23:51] Speaker 07:
Out in the field.

[00:23:52] Speaker 05:
Yeah, so that was the practice for 50 years.

[00:23:55] Speaker 07:
That was the practice.

[00:23:57] Speaker 07:
And I think, Your Honor, that's their basic argument.

[00:23:59] Speaker 07:
Hey, we were doing this for 50 years.

[00:24:02] Speaker 07:
That makes it legal.

[00:24:03] Speaker 07:
I think the Supreme Court got it right a few years ago in the McGirt v. Oklahoma case, the Cherokee rights there in Oklahoma, where they said, you know, the fact that the agency got it wrong in that case for over 100 years, the fact that they got it wrong here out in the field,

[00:24:20] Speaker 07:
That doesn't make it legal.

[00:24:22] Speaker 07:
I think we can all agree on that.

[00:24:23] Speaker 07:
It's the law that matters, the language and the history.

[00:24:26] Speaker 04:
Even if that's true, I think the issue here is about ambiguity because if it's ambiguous then

[00:24:36] Speaker 04:
then we defer to the agency and they ruled a different way.

[00:24:39] Speaker 04:
And so you have to, I think, convince us that you are unambiguously correct.

[00:24:44] Speaker 04:
And even if you have the better reading of the law, why is it ambiguous?

[00:24:49] Speaker 04:
Because it doesn't say how many millsites you're allowed to have.

[00:24:53] Speaker 07:
Right.

[00:24:54] Speaker 07:
Well, we know the Chevron step two is up tomorrow at the Supreme Court, but under today's Chevron still applies.

[00:25:00] Speaker 07:
And we say that, I mentioned before,

[00:25:04] Speaker 07:
A traditional all all parties agree that when you interpret an ambiguity, is there an ambiguity here?

[00:25:11] Speaker 07:
What's this?

[00:25:12] Speaker 07:
You look to traditional tools and those two traditional tools here is history 1872 matters not 1972 not 2003 or today and any ambiguity On statutory construction.

[00:25:27] Speaker 07:
The Supreme Court has said time after time now there's

[00:25:30] Speaker 07:
The modern cases, this doesn't pop up too often, but that doesn't mean the Supreme Court was wrong in case after case.

[00:25:38] Speaker 07:
Ambiguities must be resolved in limiting the grant.

[00:25:43] Speaker 07:
And it says, one of the arguments in the other side is, well, Congress was silent on the number of, they didn't really mention this, on the number of mill sites you could get tied.

[00:25:52] Speaker 04:
You're saying that that canon of construction makes it unambiguous?

[00:25:56] Speaker 07:
Any ambiguity is done in favor of limiting the grant.

[00:25:59] Speaker 07:
So you put the tool of construction that 1872 language and congressional intent.

[00:26:05] Speaker 07:
And what was going on in the west at the time?

[00:26:07] Speaker 04:
No, I understand.

[00:26:08] Speaker 04:
But are you saying that it eliminates ambiguity?

[00:26:10] Speaker 04:
Like say we think that under step one, it's ambiguous because it doesn't say the number of mill sites.

[00:26:15] Speaker 04:
You're saying the ambiguity is eliminated because there's a candidate of construction that favors, I guess, land being assigned to the government and not to other parties.

[00:26:25] Speaker 07:
In a way, to determine whether it's ambiguous, there is an ambiguity.

[00:26:33] Speaker 07:
You limit the grant.

[00:26:37] Speaker 07:
And also in those Supreme Court, mostly the old railroad cases when the railroads were fighting the government who got the grant, et cetera, you go to, it must be clear and concise language.

[00:26:49] Speaker 07:
to create that ambiguity.

[00:26:50] Speaker 07:
I mean, the limiting the grant must have clear and concise statutory language.

[00:26:56] Speaker 07:
There is none here that says you can have as much land as you want or as you need.

[00:27:01] Speaker 07:
And so the statutory construction tools, 1872, there's no way that mining companies were needing all this.

[00:27:09] Speaker 07:
And they have one example in a history book from Nevada, never looked at, no evidence, no details or anything.

[00:27:16] Speaker 07:
everybody says you didn't need that, all that land in 1872.

[00:27:20] Speaker 07:
And so therefore we don't think you get to Chevron step two.

[00:27:24] Speaker 07:
And even if you do, the ambiguity is resolved in favor of limiting the grant.

[00:27:30] Speaker 07:
They did the exact opposite.

[00:27:31] Speaker 07:
The 97 opinion recognized that.

[00:27:34] Speaker 07:
I mean, talking, there was the old, uh, uh, wilderness society versus Morton case on the Alaska pipeline.

[00:27:39] Speaker 07:
The pipeline companies wanted an expanded grant and the DC circuit on Bonk said,

[00:27:45] Speaker 07:
We can't just give you more land because you need it.

[00:27:47] Speaker 07:
You've got to go back to Congress and do it.

[00:27:49] Speaker 07:
And that's what everyone said for decades.

[00:27:51] Speaker 07:
You want more land under Section 42, go to Congress.

[00:27:55] Speaker 07:
You just can't do it by rule.

[00:27:56] Speaker 05:
And then comes Chevron in 1984, and there's no suggestion that it's somehow limited by this pre-existing principle dealing with land grants.

[00:28:06] Speaker 05:
It sounds to me like the statutory norm we used to have, which is that statutes and derogation of the common law to be construed narrowly.

[00:28:20] Speaker 05:
That was never expressly overruled, we just gravitated later to Chevron instead.

[00:28:25] Speaker 07:
Well, Chevron, let's say we're talking Chevron step two here again.

[00:28:28] Speaker 07:
We think, look at 1872.

[00:28:31] Speaker 07:
It's clear that they didn't get all this land in it.

[00:28:35] Speaker 07:
You didn't get it in 1872.

[00:28:37] Speaker 07:
But let's just talk about the ambiguity.

[00:28:39] Speaker 07:
We don't think that the presumption falls after, goes away after Chevron.

[00:28:47] Speaker 07:
There was actually a case, what was that?

[00:28:49] Speaker 07:
I think it was 2002, the Bedrock case, BEDROC case.

[00:28:52] Speaker 07:
It wasn't in the brief.

[00:28:53] Speaker 07:
But I remember it where it was post Chevron and they said those presumptions didn't apply because it was clear that it was ambiguous.

[00:29:07] Speaker 07:
Here, it's certainly not clear that it's ambiguous.

[00:29:10] Speaker 07:
We think the statutory language is clear from Chevron step one.

[00:29:15] Speaker 07:
Agencies always want to have the case turned into step two and argue it's ambiguous.

[00:29:20] Speaker 07:
And then basically they get to determine the law, not your honors.

[00:29:24] Speaker 07:
But I think we all agree that as from going back to Chief Justice Marshall, the courts say what the law is.

[00:29:32] Speaker 07:
And the law in 1872 was not this carte blanche, non-mineral land.

[00:29:37] Speaker 07:
I mean, as we pointed out, there's a lot of competition, fierce competition for non-mineral land.

[00:29:42] Speaker 07:
They wouldn't have just given it all to the mining companies.

[00:29:45] Speaker 07:
There goes the ranchers, there goes the railroads, there goes the farms.

[00:29:48] Speaker 06:
Can you point me to the specific statutory text that you think at least ambiguously supports your position?

[00:30:04] Speaker 06:
Because your brief invokes the word such, and I just don't see that at all.

[00:30:11] Speaker 07:
Well, Your Honor, that's what we agree with the 97 opinion, and it ties

[00:30:17] Speaker 07:
every mill side claim to the mining of vane or load.

[00:30:24] Speaker 06:
Your best argument is the one Judge Pan articulated, which at most is a structural argument.

[00:30:37] Speaker 06:
To me, it feels a little bit more like

[00:30:43] Speaker 06:
I don't want to sound pejorative.

[00:30:44] Speaker 06:
It sounds like a purpose sort of argument, a harmonization argument that you have to read into the statute a limitation that's not there, because if you don't, the five-acre limit just doesn't seem to make any sense.

[00:31:05] Speaker 06:
That's your position.

[00:31:08] Speaker 07:
But why did they put a limit on five acres?

[00:31:10] Speaker 07:
is because there's other non-mineral land.

[00:31:14] Speaker 07:
There's other things going on.

[00:31:17] Speaker 07:
Mining law.

[00:31:19] Speaker 06:
One answer to that might be that there are independent requirements on the mill siding land.

[00:31:31] Speaker 06:
It has to be non-mineral.

[00:31:34] Speaker 06:
It has to be not contiguous.

[00:31:36] Speaker 06:
It has to be used to support the mining.

[00:31:39] Speaker 06:
that they're just going to assess the fitness or the permissibility of the mill site site on a five acre basis.

[00:31:50] Speaker 06:
That's the level of generality at which they're going to figure out whether the mill site land can be used for that purpose.

[00:31:58] Speaker 06:
And that doesn't seem, if your argument is we have to read in a limitation to

[00:32:07] Speaker 06:
make other texts not surplusage.

[00:32:10] Speaker 06:
Seems like that's enough to make the statute work.

[00:32:15] Speaker 07:
Well, that's not like a broken record, but I apologize.

[00:32:19] Speaker 07:
But in 1872, that wasn't the case.

[00:32:22] Speaker 07:
The only other time this was discussed in the briefing that Congress ever looked at this was in 1960.

[00:32:27] Speaker 07:
The original 1872 language was just for load claims, the underground, the rock in place, as they call it.

[00:32:34] Speaker 07:
Classroom mines are more the surface mines.

[00:32:36] Speaker 07:
along streams and things like that.

[00:32:39] Speaker 06:
I'll slap you that, but it just feels a little bit like a classic question of Fourth Amendment and wiretaps, right?

[00:32:50] Speaker 06:
The framers never thought about wiretaps, but the best you can do is apply the words of the law to a new situation.

[00:32:59] Speaker 06:
And the words of this law don't seem to foreclose

[00:33:05] Speaker 06:
multiple milsat claims.

[00:33:09] Speaker 04:
So I see a textual reading of this, which was not raised in the briefs, that would support Earthworks position.

[00:33:18] Speaker 04:
I don't know if this is unambiguous or not, but if you read such

[00:33:24] Speaker 04:
So the statute says non-mineral land not contiguous to the Vayner load is user occupied for mining or milling purposes.

[00:33:34] Speaker 04:
Such non-adjacent surface, if you reach such to refer to all of the non-mineral land that's not contiguous and used for mining or milling purposes, such meaning all of it, then such land shall not exceed five acres.

[00:33:50] Speaker 04:
So I do see a textual reading that would support your approach.

[00:33:54] Speaker 04:
It's not the one that you raised, but that's one way.

[00:33:57] Speaker 04:
If you were to read such as referring to all of the non-mineral land that's not contiguous that we're going to use for mine or milling purposes, all the mill-site land, then that such, that mill-site land can exceed five acres.

[00:34:10] Speaker 04:
There would be a textual basis for what you're saying.

[00:34:13] Speaker 04:
I don't know if that's ambiguous because you can also read it as it doesn't say you can't have more than one mill site, but I do see a textual argument.

[00:34:21] Speaker 07:
I would agree.

[00:34:24] Speaker 07:
I think it is tied to the such.

[00:34:26] Speaker 07:
In fact, in the government's answer brief they talked about, they admitted there was a link between mill sites and the mining of the veiner load, but then they pointed out that there was this other provision for an independent mill site

[00:34:38] Speaker 07:
that somehow proves their point, but that never came up in the order, never came up in the district court, never came up in the briefing until you showed up.

[00:34:45] Speaker 07:
And actually, the 2003 opinion said that you only got one independent mill site.

[00:34:51] Speaker 07:
The language in the opinion at page 31 says that in the 1891 HECPA consolidated mine decision, it said, quote, the owner of a quartz mill or reduction works, those are the independent mill sites, may locate only one five acre independent mill site

[00:35:07] Speaker 07:
under the mill site provision.

[00:35:09] Speaker 07:
They only got one.

[00:35:10] Speaker 04:
So whether Mr. Flynn, I think we're just trying to zero in on the statutory language.

[00:35:15] Speaker 04:
Okay.

[00:35:16] Speaker 04:
Okay.

[00:35:16] Speaker 04:
And that was saying that textually, like, what is the support for your argument?

[00:35:21] Speaker 04:
That's what we're trying to zero in on right now.

[00:35:24] Speaker 07:
Right.

[00:35:25] Speaker 06:
Because I read the such as just shorthand for

[00:35:32] Speaker 06:
You're talking about land out there.

[00:35:34] Speaker 06:
It's just right.

[00:35:36] Speaker 06:
Whatever the land is, before we talk about subdividing it or not, it has to be non-mineral.

[00:35:44] Speaker 06:
It has to be not contiguous.

[00:35:47] Speaker 06:
And it has to be used or occupied by the proprietor for milling or mining purposes, not contiguous to that.

[00:35:54] Speaker 06:
That's the land we're talking about.

[00:35:57] Speaker 06:
It's introduced in a long,

[00:36:01] Speaker 06:
introductory clause that runs, I don't know, 30 words or something.

[00:36:06] Speaker 06:
And then the such is to shorthand for all the land that meets all those descriptors, the land that meets all the, right?

[00:36:14] Speaker 07:
That's correct.

[00:36:15] Speaker 07:
And I think Judge Fenn, that's where you were going.

[00:36:17] Speaker 04:
No, I think the possible distinction is reading such as any non-mineral land that's non-contiguous and use for mining purposes for all of the non-mineral land that is used or occupied.

[00:36:31] Speaker 04:
Because if you say any, then that would allow multiple mill sites, correct?

[00:36:35] Speaker 04:
But if you say all of the non-mineral lands that's used or occupied for whatever, non-contiguous and used or occupied for non-milling, and that such land has to be five acres, then that would limit all of it to five acres.

[00:36:49] Speaker 04:
So I think there could be ambiguity in such, because even if you rely on such, such could mean any such land or all of such land.

[00:36:59] Speaker 07:
Well, you know, one of the, oh, sorry, go ahead, Judge Ginsburg.

[00:37:02] Speaker 05:
I agree, I guess.

[00:37:03] Speaker 05:
I mean, I could not frankly make sense of the argument in the way that Judge Pan has done, although I see her point.

[00:37:11] Speaker 05:
But when we go on to say, but no location, such non-adjacent land shall exceed five acres, introducing the term location here, which I understand from your brief is essentially a synonym for stake.

[00:37:27] Speaker 07:
Claiming, faking your claim, yes.

[00:37:29] Speaker 05:
that there's no limit on locations.

[00:37:34] Speaker 07:
Oh, well, this came up, it's a good point.

[00:37:36] Speaker 07:
It came up a lot in the briefing because you could have those early cases said you got five acres maximum of mill site land to support the mining of the vein or load.

[00:37:47] Speaker 07:
In fact, a very narrow reading is that you only got five acres total.

[00:37:51] Speaker 05:
We're trying to limit this inquiry to the statute itself.

[00:37:56] Speaker 05:
in order to see whether we can find your argument in the statute, okay?

[00:38:03] Speaker 05:
So don't tell me about history with the minute I mentioned the statute.

[00:38:07] Speaker 07:
Okay, fair enough, Judge Ginsburg.

[00:38:11] Speaker 07:
So a lot of the briefing talked about you could have multiple mill sites to support every load, but the total had to be five.

[00:38:21] Speaker 07:
So you could have- Five acres.

[00:38:24] Speaker 07:
Yeah, five acres.

[00:38:25] Speaker 07:
One two acre one three acre.

[00:38:27] Speaker 07:
Well, how would that happen why wouldn't you put in five.

[00:38:31] Speaker 04:
You might have to split them up on the location clause wouldn't the argument be that you're saying no location of such adjacent land so if such is read.

[00:38:42] Speaker 04:
as any, then it would allow multiple mill sites, but if such is read as the, all of it.

[00:38:48] Speaker 04:
So location of all of the non-mineral land that you're using for a mill site is limited to five acres.

[00:38:54] Speaker 04:
So I think that the ambiguity is in such, whether it's read as such equals any such land or the land, all of the land.

[00:39:03] Speaker 04:
And I think that location changes that ambiguity.

[00:39:07] Speaker 05:
Am I correct, Judge Pan, in saying that this is

[00:39:10] Speaker 05:
The point you just made is one that was not the one made in the briefs?

[00:39:14] Speaker 05:
Correct.

[00:39:14] Speaker 04:
Not in the briefs.

[00:39:16] Speaker 05:
Not in the briefs.

[00:39:18] Speaker 05:
Right.

[00:39:18] Speaker 05:
Now the briefs left without a viable reading on behalf of the appellants here.

[00:39:23] Speaker 07:
Well, Your Honor, I would respectfully say that when we focused on such and we focused on the five acres total, you got a total location or claiming of five acres.

[00:39:32] Speaker 07:
I think that gets to where you're going there, Judge Pan.

[00:39:36] Speaker 07:
You know, the early cases allowed you to file more than one mill site.

[00:39:39] Speaker 07:
It's just the total had to be five acres max for the mining of every ore body or vein or load, as it's called in the statute.

[00:39:48] Speaker 07:
And so that was the limit there.

[00:39:51] Speaker 07:
And what language would they have used if the other side argues, well, they should have said, you only get one period.

[00:39:57] Speaker 07:
Well, that wasn't what Congress was drafting.

[00:39:59] Speaker 07:
They were basically said, you got five acres of location, which is the claim.

[00:40:04] Speaker 07:
One two acre one three acre.

[00:40:06] Speaker 07:
It doesn't matter.

[00:40:07] Speaker 07:
It's five and that's what the 97 opinion said So again, if we don't think it's ambiguous, I mean what was going on for a hundred and some odd years everybody that looked at this Real environmentalists back then or environmental groups everyone industry lawyers law professors Reports to congress all said the interpretation that we're arguing

[00:40:29] Speaker 07:
It wasn't until modern mining got real big and needed this where the agency said, OK, well, we're just going to give them pass all these lands.

[00:40:36] Speaker 07:
We're going to not pay attention to this.

[00:40:38] Speaker 04:
Mr. Flynn, I think the bottom line is even if you have the best reading of the statute, I think you need to have an unambiguously correct reading of the statute.

[00:40:48] Speaker 04:
And I don't know if we're there.

[00:40:50] Speaker 07:
Well, respectfully, that would just ignore what the Supreme Court has been saying since the 1880s and 90s.

[00:40:57] Speaker 07:
Ambiguities.

[00:40:58] Speaker 07:
must be interpreted to limit the grant.

[00:41:01] Speaker 07:
So even if we concede it, but for today, if there is some ambiguity, any ambiguity is interpreted to limit the grant.

[00:41:14] Speaker 07:
We just can't throw out that Supreme Court unbroken line of precedent, case after case.

[00:41:20] Speaker 07:
You have to interpret the ambiguity again.

[00:41:22] Speaker 07:
So I don't know how they get around that.

[00:41:27] Speaker 07:
Supreme Court has said, when you're dealing with public resources, you err on the side of the public resource, not giving it away.

[00:41:36] Speaker 07:
And that's what the 03 rule does.

[00:41:37] Speaker 07:
It just gives away thousands of acres.

[00:41:40] Speaker 07:
A property right, a 50-minute property right.

[00:41:42] Speaker 04:
You raised that presumption argument in your reply brief, correct?

[00:41:46] Speaker 07:
Yeah, we were responding to the Chevron argument.

[00:41:49] Speaker 07:
We raised it to the district court.

[00:41:50] Speaker 07:
District court didn't mention it.

[00:41:51] Speaker 07:
And so, as you know, the government and the industry argues step two Chevron, everything's ambiguous.

[00:41:58] Speaker 07:
That's what they argue all the time.

[00:42:00] Speaker 07:
And so we're saying that doesn't apply in this case.

[00:42:04] Speaker 07:
Things can be ambiguous, you know, maybe for the sake of argument, but when you actually interpret it, you interpret the such.

[00:42:13] Speaker 07:
If this was a case in 1890, which the same facts,

[00:42:17] Speaker 07:
The Supreme Court would say, oh, yeah, you don't get as much.

[00:42:19] Speaker 07:
The presumption is in favor of limiting the grant.

[00:42:23] Speaker 07:
And so they turned that on its head in 2003 and said, no, it's ambiguous.

[00:42:28] Speaker 07:
So we will give them thousands of acres basically for $5 an acre.

[00:42:34] Speaker 07:
The price hasn't changed.

[00:42:36] Speaker 07:
Even though it's a moratorium, it has to be renewed every year in Congress.

[00:42:38] Speaker 07:
So who knows what the next Congress will do with this.

[00:42:41] Speaker 07:
And so we think it's not ambiguous.

[00:42:44] Speaker 07:
There's such ties to it.

[00:42:45] Speaker 07:
It's the total land.

[00:42:47] Speaker 07:
And I think we made that point, particularly quoting the reports to Congress.

[00:42:52] Speaker 07:
The report to Congress, you probably saw that diagram that said the current law is you got one mill site for the big mine claim block.

[00:43:01] Speaker 07:
They said, that's not going to work for the mining industry anymore.

[00:43:04] Speaker 07:
We've got to, and what was the solution?

[00:43:06] Speaker 07:
Go to Congress and get a big block of mill sites to go with your big block of mining claims with the ore body.

[00:43:11] Speaker 07:
That is going to help the mining industry.

[00:43:13] Speaker 07:
Congress, you should do that.

[00:43:15] Speaker 07:
But they didn't.

[00:43:16] Speaker 07:
And so it's not me.

[00:43:19] Speaker 07:
It's not even the 97th opinion from the secretary that says this.

[00:43:23] Speaker 07:
It was said for 100 years after the mining law, that's the way the law works.

[00:43:28] Speaker 07:
They're just ignoring that.

[00:43:29] Speaker 07:
And they say, well, that's just a report to Congress.

[00:43:32] Speaker 07:
There was no details.

[00:43:33] Speaker 07:
It was Law Review Articles written, the 20 Law Review Articles, 20 and Sweetright Report.

[00:43:39] Speaker 07:
They all said,

[00:43:41] Speaker 07:
We got to change the mindlock that they don't get all this.

[00:43:46] Speaker 06:
We take your point about later sources.

[00:43:51] Speaker 06:
Judge Pan, any other questions?

[00:43:53] Speaker 03:
No, thank you.

[00:43:54] Speaker 06:
Judge Ginsburg?

[00:43:55] Speaker 06:
No, thank you.

[00:43:57] Speaker 06:
Okay.

[00:43:58] Speaker 06:
Thank you very much, Your Honor.

[00:44:01] Speaker 06:
We will give you rebuttal time.

[00:44:03] Speaker 06:
Thank you, sir.

[00:44:04] Speaker 06:
Okay, we'll hear from DOJ.

[00:44:08] Speaker 08:
Mr. Toth?

[00:44:12] Speaker 01:
May it please the court, Brian Toth from the Department of Justice, representing the federal defendants at Belize.

[00:44:19] Speaker 01:
The regulation at issue in this case has been supported and defended in litigation by agencies under four different presidential administrations.

[00:44:30] Speaker 01:
As a threshold matter, I understand the court.

[00:44:34] Speaker 01:
I'm sorry.

[00:44:35] Speaker 04:
Are you saying that there's been a legal challenge to your interpretation before?

[00:44:39] Speaker 04:
Is there a case that I'm not aware of?

[00:44:42] Speaker 04:
You said defending court four times?

[00:44:44] Speaker 01:
No, this litigation has continued since 2009.

[00:44:47] Speaker 01:
Oh, you mean all in this litigation?

[00:44:52] Speaker 01:
Correct.

[00:44:52] Speaker 01:
Correct.

[00:44:54] Speaker 01:
It's been, you know, this has not been a case that the government has compromised under any of those administrations, settled despite the long running status of the of the suit.

[00:45:05] Speaker 01:
So this is a it's interesting to hear plaintiffs arguing about

[00:45:09] Speaker 01:
the lack of notice that they received over 20 years ago.

[00:45:14] Speaker 01:
Just on that preliminary issue, I would direct the court to the comments that they actually submitted on the proposed rule.

[00:45:22] Speaker 01:
They're in the joint appendix beginning at page 708.

[00:45:25] Speaker 01:
You'll see the issue is fairly joined here.

[00:45:29] Speaker 01:
They received sufficient notice.

[00:45:34] Speaker 01:
As a threshold matter sort of backing up, I realize this is not

[00:45:38] Speaker 01:
anything the court asked my friend on the other side questions about.

[00:45:43] Speaker 01:
But as a threshold matter, the plaintiffs have failed to demonstrate that at the time of the suit and at the time of their summary judgment motions, that they had Article III standing to bring their challenges against this regulation in the facial context.

[00:45:59] Speaker 01:
They do so here.

[00:46:01] Speaker 01:
The case that I would point the court to as instructive here is the Supreme Court's decision

[00:46:07] Speaker 01:
in the Summers versus Earth Island Institute case, also an official challenge to regulations.

[00:46:15] Speaker 01:
And in that case, the plaintiffs challenged the regulations, but they also challenged a site-specific project applying the regulations.

[00:46:25] Speaker 01:
The Supreme Court held that because the agencies had settled the site-specific challenge with the project with the plaintiffs,

[00:46:35] Speaker 01:
that all that was left was a bare facial challenge and the affidavits that those plaintiffs in that case had submitted were inadequate.

[00:46:43] Speaker 06:
The problem with Summers, if I remember it correctly, was you had an organization but they didn't have identified members to show the members standing, right?

[00:46:56] Speaker 01:
I believe that's correct.

[00:46:57] Speaker 01:
I think they were relying on sort of a statistical probability that one of them... So here,

[00:47:04] Speaker 06:
No, I just took my cards on the table.

[00:47:06] Speaker 06:
I thought the Hartman affidavit was good enough.

[00:47:09] Speaker 06:
So A, it seems like that gets them over the summer's problem.

[00:47:14] Speaker 06:
And B, why isn't that good enough?

[00:47:18] Speaker 01:
So I believe the Hartman affidavit concerns the Rosemont copper mine project.

[00:47:25] Speaker 01:
And at the time of that affidavit in 2017, that was the summer judgment briefing that year,

[00:47:34] Speaker 01:
The project deposited waste onto what plaintiffs contended were invalid mining claims.

[00:47:43] Speaker 01:
It didn't concern mill site claims at all.

[00:47:47] Speaker 01:
Plaintiff's allegation about Rosemont, that project that's at issue in that declaration, is that since the Ninth Circuit's decision holding the authorization for that mining of that project invalid in 2022, the mining companies have

[00:48:04] Speaker 01:
have switched their plan to deposit mine tailings on mill sites that they now claim.

[00:48:11] Speaker 01:
But that wasn't the case at the time of the summer judgment briefing.

[00:48:15] Speaker 01:
So those changed facts might support some future declaration if they could connect the dots efficiently.

[00:48:23] Speaker 01:
But respectfully, the facts have changed since that declaration.

[00:48:31] Speaker 01:
And I briefly point to the declarations concerning another project that the only other project that they invoke the Mount Emmons mine, that has not been the subject of any authorization by the agencies since the summary judgment briefing.

[00:48:48] Speaker 01:
And it's not clear that there's any imminent harm coming to plaintiffs and particularly as a result of anything related to the regulation they're challenging about mill sites.

[00:49:03] Speaker 01:
So moving to the discussion of the merits a bit, you know, and I think I did address the logical outgrowth argument briefly related to the comments.

[00:49:17] Speaker 01:
I'll just focus right now on the mining law question.

[00:49:21] Speaker 01:
It's our submission that the plaintiff's reading of the statute is not compelled by the statute's text or its history.

[00:49:29] Speaker 01:
And so therefore, their interpretation is at best

[00:49:32] Speaker 01:
one of a number of reasonable interpretations if you could, you know, giving them the benefit of the doubt that it's reasonable.

[00:49:40] Speaker 01:
And so it's not, it's nothing that's compelled under the precedent to be substituted for the agency's judgment here.

[00:49:51] Speaker 06:
They point primarily to- Suppose before we decide this case,

[00:49:59] Speaker 06:
Supreme Court were to overrule Chevron and tell us to just decide what we think is the best reading of the statute.

[00:50:10] Speaker 06:
What's your position about the best reading of this statute?

[00:50:16] Speaker 01:
We've made text-based arguments here, and the court can decide under step one in our favor, but we're advocating- Well, this is not step one, right?

[00:50:28] Speaker 01:
Right.

[00:50:28] Speaker 06:
Which is lack of ambiguity.

[00:50:31] Speaker 06:
I'm just saying, what is the best reading?

[00:50:33] Speaker 01:
So we don't have, I mean, the agencies do not have a position on what the better reading of the statute is.

[00:50:42] Speaker 01:
They've, you know,

[00:50:45] Speaker 01:
If they were writing out a blank slate, they might do things differently, but their view is that this is a regulation that has efficient ambiguity to allow them to interpret it.

[00:50:59] Speaker 06:
You want to be able to defend it if the agency lip flops.

[00:51:04] Speaker 06:
That's the best you're going to tell us.

[00:51:07] Speaker 06:
Either reading is OK.

[00:51:10] Speaker 01:
That's a fair observation.

[00:51:13] Speaker 01:
I mean, the agency is interested in preserving its discretion.

[00:51:17] Speaker 06:
As you know- All right, tell me why you're, tell us why yours is as good as you think it is, whether it's ambiguously compelled the best reading or a reasonable reading.

[00:51:31] Speaker 01:
So the statute does not expressly limit the number of millsides that a claimant can obtain.

[00:51:38] Speaker 01:
By contrast, it limits the size of the mill sites.

[00:51:42] Speaker 01:
Likewise for mining claims, both for load claims in section 23 and for plaster claims in section 35, the size of those claims is limited, but not the number.

[00:51:54] Speaker 06:
Why would you limit?

[00:51:55] Speaker 06:
Why might a rational Congress want to limit the size, but not the number?

[00:52:03] Speaker 06:
if it's just a matter of they get as much as they want, but if they want, they want a hundred acres, they have to file 20 claims rather than just one.

[00:52:17] Speaker 06:
What's the sense of that?

[00:52:19] Speaker 01:
So the, the best, the best support for that, that I can find in the text is the limitation for the user occupancy and that that is a meaningful limit, although it's not a numeric limit on the,

[00:52:33] Speaker 01:
the mill site claims.

[00:52:35] Speaker 01:
So for each five acre parcel, the claimant has to make in its patent application, just to put context here, this is related to when somebody is submitting a patent application for actual ownership of the mill sites, they'd have to provide sufficient evidence demonstrating that they're used or occupied for mining or milling purposes.

[00:52:59] Speaker 04:
Why can't it be just as much as they want to use for mining or milling purposes?

[00:53:03] Speaker 04:
Why have a five acre limit?

[00:53:06] Speaker 01:
Well, I think that just shows that they have to demonstrate on a five acre by five acre basis that each of those.

[00:53:15] Speaker 04:
Why would you have that if it's just as long as you're going to use it for mining or milling purposes?

[00:53:21] Speaker 01:
Well, I can't.

[00:53:24] Speaker 01:
I don't know.

[00:53:25] Speaker 01:
I mean, I don't think we have to define an actual purpose that the Congress in 1872 had in mind.

[00:53:34] Speaker 03:
Do you think that Congress in 1872 intended that there could be unlimited land use for mill sites?

[00:53:45] Speaker 01:
Unlimited land use.

[00:53:46] Speaker 01:
I mean, it didn't cap the acreage, but I think they did intend.

[00:53:50] Speaker 01:
I mean, from the text, there is a meaningful

[00:53:53] Speaker 01:
requirement that there's actual use or occupancy.

[00:53:56] Speaker 04:
So it's not as if they can- I'm just asking, do you think that the Congress in 1872 intended that you could have multiple mill sites, as many as you want, as long as you're using them for milling and mining purposes?

[00:54:12] Speaker 01:
Yes, I do believe that's the case.

[00:54:15] Speaker 01:
And I think- What's your evidence for that, that that was their intention?

[00:54:20] Speaker 01:
Well, if you look at the statutory history, the 1866 load law did, and this is not related to mill sites, but it's related to load mining claims.

[00:54:30] Speaker 01:
It did include a numeric limit on load mining claims that could be subject to a patent, and that statute was repealed.

[00:54:37] Speaker 01:
No, I understand that.

[00:54:37] Speaker 04:
I'm just trying to understand why you think that the 1872 Congress intended to allow unlimited numbers of mill sites.

[00:54:46] Speaker 01:
Well, I don't think there's unequivocal intent evidence either way.

[00:54:51] Speaker 01:
I mean, that's that's our argument for why it's ambiguous.

[00:54:53] Speaker 04:
But the best argument that I can I think structurally, though, it seems that as we've discussed, I think there is some textual reading you could read such to indicate they meant all of the mill site land is limited to five acres.

[00:55:07] Speaker 04:
They've linked the mill sites to a mining claim.

[00:55:11] Speaker 04:
The claim is limited in size.

[00:55:14] Speaker 04:
They've got this five acre limit for the mill site.

[00:55:19] Speaker 04:
It would be odd that there's a limit on size for the mining claim, but no limit on the amount of land you could use for mill sites.

[00:55:25] Speaker 04:
So just structurally, it seems to weigh in favor of the other reading.

[00:55:30] Speaker 04:
You've got contemporaneous interpretations.

[00:55:32] Speaker 04:
The J.B.

[00:55:32] Speaker 04:
Hagen case and the Heklo consolidated mining were as contemporaneous as we have.

[00:55:37] Speaker 04:
suggest there is a five acre limit.

[00:55:42] Speaker 04:
And that's just from back then.

[00:55:44] Speaker 04:
Then we have Congress, to the extent we want to get what they think in more modern times.

[00:55:50] Speaker 04:
But they amended the statute to deal with placer claims.

[00:55:54] Speaker 04:
They stated that their understanding was the statute, as it originally was, was five acres per mining claim.

[00:56:03] Speaker 04:
Then after the 1997 opinion came out,

[00:56:07] Speaker 04:
which took the position that Earthworks is advocating, Congress didn't reject that or say that was wrong.

[00:56:14] Speaker 04:
They just put it off, right?

[00:56:17] Speaker 04:
So there just needs to be a lot of evidence on the side of the scale weighing in favor of the interpretation, the five acres per mining claim interpretation.

[00:56:29] Speaker 04:
Like in my mind, it's really just, is it unambiguously so or not?

[00:56:32] Speaker 04:
But it just seems there's a lot of evidence on the other side.

[00:56:34] Speaker 04:
And on your side of the scale, you're saying, well, this is the way

[00:56:37] Speaker 04:
The Bureau of Land Management has been doing it, but just because they've been doing it that way doesn't mean it was a correct interpretation of the statute.

[00:56:44] Speaker 04:
So, and then there's all these expert entities to they're all cited in the 1997 opinion they all assumed it was a five acre per limit.

[00:56:52] Speaker 04:
you know, per permitting claim limit.

[00:56:56] Speaker 04:
And then there's this, you know, Public Land Law Review Commission, the Office of Technology Assessment Review.

[00:57:02] Speaker 04:
It's just, everybody seemed to believe, or many sources seem to believe, legally speaking, it's supposed to be this five acre limit.

[00:57:08] Speaker 04:
And what you're really relying on is just agency practice, which doesn't really speak to whether it's the correct interpretation of the statute.

[00:57:15] Speaker 04:
In my mind, it's just whether this is unambiguous or not.

[00:57:20] Speaker 01:
A few points.

[00:57:22] Speaker 01:
Well, our contention is that it is ambiguous, but a few points in response to the various evidence that you're talking about.

[00:57:32] Speaker 01:
You know, I think the best analysis of all of this is the 2003 Solicitor's Opinion, and I think it treats this in detail.

[00:57:41] Speaker 01:
But, you know, this is not an issue that would have come to the fore of

[00:57:48] Speaker 01:
the general land office, which was BLM's predecessor's attention in the early years, except when someone was applying for a patent.

[00:57:55] Speaker 01:
This kind of gets back to our standing argument, which is that this this statute concerns patenting concerns locating and staking claims and patenting it for property rights.

[00:58:06] Speaker 01:
So it's not going to be that miners who state claims are going at that historical time.

[00:58:12] Speaker 01:
We're going to the general land office to record those claims.

[00:58:15] Speaker 01:
They were recording them under the or staking them under the laws and regulations of local mining districts and to the extent states regulated them.

[00:58:23] Speaker 01:
under those laws and regulations, but they weren't going to the general land office to where there was a need to resolve that issues, which may explain the absence from the historical record of resolution of the dispute early on.

[00:58:40] Speaker 01:
But I would also point the court to- But don't you think it's interesting that- I'm sorry, go ahead.

[00:58:46] Speaker 06:
Just on that point, the nuts and bolts of how this works.

[00:58:53] Speaker 06:
It seems pretty clear that with regard to mining, with regard to the mining sites, the statute in place, claiming and patenting, and companies often can claim and extract the minerals without getting any patent, correct?

[00:59:19] Speaker 06:
Yes.

[00:59:20] Speaker 06:
Okay, does that same division apply with respect to mill sites?

[00:59:26] Speaker 06:
Because I did notice this odd feature of Section 42, which is on its face, it seems to be just about patenting the mill site claim.

[00:59:41] Speaker 06:
It sort of seems to assume that there's the

[00:59:46] Speaker 06:
and a seeing practice of the informal claiming, which is self-executing.

[00:59:51] Speaker 06:
And you can claim the site.

[00:59:53] Speaker 06:
You don't have to go to the government.

[00:59:56] Speaker 06:
Is that how it actually worked with respect to the mill sites as well?

[01:00:03] Speaker 01:
That's my understanding.

[01:00:06] Speaker 01:
I don't have another statute to point to that has

[01:00:11] Speaker 01:
requirements for locating and staking claims from mill sites.

[01:00:15] Speaker 01:
There's a statute section 28 that concerns mining claims and references regulations of local mining districts and that was really the way that this evolved was that in the west there were local mining districts that sort of govern the

[01:00:31] Speaker 01:
the miners themselves.

[01:00:33] Speaker 01:
And so it's largely a self-regulated industry in its early years.

[01:00:37] Speaker 01:
And Congress adopted that framework in deferring to those local regulations and later state regulations of how to state those claims.

[01:00:46] Speaker 01:
So there's not a federal statute.

[01:00:50] Speaker 01:
Okay.

[01:00:51] Speaker 06:
Thanks.

[01:00:52] Speaker 06:
I'm sorry, Judge Pan.

[01:00:53] Speaker 06:
Go ahead.

[01:00:56] Speaker 04:
Oh, I was just going to note you were saying that maybe didn't come up because, you know, when people came into, I guess, try to patent their mill sites.

[01:01:06] Speaker 04:
But there's that heckler case where they happened to.

[01:01:10] Speaker 04:
to want to claim two male sites, but they were 4.5 acres and 0.5 acres, like making sure that they didn't exceed the five acre limit, which one could infer means that everybody understood you can do over five acres.

[01:01:29] Speaker 01:
I understand that's one reading of it.

[01:01:30] Speaker 01:
I mean, because it wasn't over five acres, the issue wasn't necessarily to the decision.

[01:01:36] Speaker 01:
But a counter example would be

[01:01:39] Speaker 01:
the Gould and Curry mining claims, also known as the Comstock load that's discussed in our red brief at page 44, and in the 2003 solicitor's opinion, the Joint Appendix 756.

[01:01:53] Speaker 01:
There, the acreage of mill sites far exceeded the length of the load claims, if you look at the ratios.

[01:02:02] Speaker 01:
So,

[01:02:03] Speaker 01:
You know, it's not clear from the historical record.

[01:02:07] Speaker 04:
I'm sorry, was that upheld by a court somehow or why is that relevant?

[01:02:11] Speaker 01:
No, it's just, it's not to my, I apologize.

[01:02:16] Speaker 01:
I don't know all the details, but it's not part of a court decision, but it is part of the historical record that is part of the basis for the decision-makers adoption of the rule.

[01:02:28] Speaker 04:
So... But does that just support the notion that it has been the practice of the BLM to approve these things, even if they exceeded the five acre limit?

[01:02:39] Speaker 01:
That may be, but this was from, this was a contemporaneous example from around the time of the mining laws enactment in the 1870s.

[01:02:47] Speaker 01:
So it would have been BLM's predecessor, but I mean, I take your point that there's not a judicial decision that definitively resolves this.

[01:02:59] Speaker 01:
I sort of, regarding another argument that my friend on the other side presents, he relies heavily on this narrowing canon of construction for land grants.

[01:03:11] Speaker 01:
And I want to just briefly point out that this is countered by the 2003 opinion at Page

[01:03:20] Speaker 01:
752 of the Joint Appendix, page 13 of the opinion, a citation to the Supreme Court's decision in Leo Cheap.

[01:03:28] Speaker 01:
It involved a railroad statute, a Union Pacific Act, that that canon that he's talking about narrowing was not applied to.

[01:03:37] Speaker 01:
And the mining law better resembles the statute in that case because it was held that

[01:03:44] Speaker 01:
statutes that are not outright grants like this mining law, but rather provide a framework for someone to obtain a benefit by investing time and work and resources, that that narrowing canon doesn't apply to those types of statutes.

[01:04:01] Speaker 01:
And the solicitor's opinion in 2003 distinguished that narrowing canon on that basis.

[01:04:08] Speaker 01:
I see I'm well over my time

[01:04:11] Speaker 01:
I'm happy to continue addressing the court's questions.

[01:04:16] Speaker 01:
Judge Pan, anything else?

[01:04:17] Speaker 03:
No, thank you.

[01:04:19] Speaker 06:
Judge Ginsburg?

[01:04:20] Speaker 06:
No, thank you.

[01:04:21] Speaker 06:
OK, we understand your position, and thank you for your argument.

[01:04:28] Speaker 06:
Next up is the intervener, Ms.

[01:04:32] Speaker 06:
Dawson.

[01:04:34] Speaker 00:
Yes, good morning, Your Honors, and may it please the court.

[01:04:37] Speaker 00:
Elizabeth Dawson, appearing on behalf of the mining intervener appellees.

[01:04:41] Speaker 00:
The mining law of 1872, or as it was originally titled, an act to promote the development of mining resources of the United States, has one paramount objective, to make federal public land free and open for exploration and recovery of the nation's mineral resources.

[01:04:56] Speaker 00:
That objective is as important today with the nation on the precipice of another technological revolution as it was in 1872.

[01:05:02] Speaker 00:
Now, we agree with the United States that the 2003 mill site rule faithfully effectuates the mining law.

[01:05:09] Speaker 00:
However, we submit that the mining law is not ambiguous, but rather that by looking at those traditional tools of statutory construction, text, context, purpose, and history, the court can and should readily determine that the mining law's mill site provision does not restrict the number of five acre mill site claimants may locate as long as they are reasonably necessary to effectively exercise the statutory right to mine.

[01:05:35] Speaker 00:
And to that point, I would like to briefly respond, Judge Pan, to your question about the use of the word such.

[01:05:41] Speaker 00:
Because I think it's also important that the statute includes the word location.

[01:05:45] Speaker 00:
That word location is repeated both in the load claim and the placer claim statutory language.

[01:05:51] Speaker 00:
So whereas there is a acreage limit in all three cases, load, placer, and mill site, there is not a location restriction.

[01:05:58] Speaker 00:
And this makes sense that Congress wanted to encourage the development of mineral resources and prescribed a specific acreage as a default, but did not limit the number of locations that may be staked as long as they comply with the other rules, which are restrictions on the staking of mill sites.

[01:06:14] Speaker 00:
As Judge Cashless, you said must be non-contiguous to the Vanerlo.

[01:06:18] Speaker 00:
They must be non-mineral in character.

[01:06:19] Speaker 00:
They must be used or occupied for mining and milling purposes.

[01:06:23] Speaker 00:
And the 2003 mill site rule imposes a further condition, which is that there be no more land than is reasonably necessary for compact mining operations.

[01:06:32] Speaker 00:
So it is not the case that there would be unfettered use of federal land for mills.

[01:06:36] Speaker 00:
So in your view, what's the purpose of the five acre wording in the statute?

[01:06:41] Speaker 00:
I think it's important to look at the five acre in contrast with the 20 acre default for mining claims.

[01:06:46] Speaker 00:
So the mining law understandably is focused on mineralized land.

[01:06:50] Speaker 00:
And so mineralized land can be staked 20 acres at a time.

[01:06:54] Speaker 00:
For non-mineralized land, we agree with our opponents that there are other uses that such land can be put to.

[01:07:02] Speaker 00:
So it makes sense that there will be a smaller default acreage for the mill site.

[01:07:07] Speaker 00:
That was not to say that there could be only one mill site per mining claim.

[01:07:13] Speaker 00:
And I think.

[01:07:14] Speaker 06:
What what what is that limit doing sorry.

[01:07:18] Speaker 06:
I didn't hear an answer.

[01:07:20] Speaker 00:
Oh i'm sorry it's that the it's because it has to be non mineralized land.

[01:07:24] Speaker 00:
it makes sense that that is a smaller default because that land could be put to other uses.

[01:07:29] Speaker 00:
And Congress wanted to put the burden on claimants to show that it was being used or occupied for mining or milling purposes.

[01:07:36] Speaker 04:
But if the purposes for the mill site land to be smaller than the mining claim, your interpretation allows the mill site land to dwarf the mining claim.

[01:07:46] Speaker 04:
You can have as many mill sites as you want.

[01:07:48] Speaker 04:
You can have infinity mill site land.

[01:07:53] Speaker 00:
Well, your honor, I do believe that the non mineralization requirement user occupancy and non contiguous do impose important restrictions on the amount of land.

[01:08:02] Speaker 00:
They can still dwarf the mining claim.

[01:08:06] Speaker 00:
That is possible that that is what is necessary to engage in the in the mining.

[01:08:12] Speaker 00:
as approved by the Interior Department with all of the other restrictions.

[01:08:16] Speaker 04:
But you said the default reflects a desire that the mill site be smaller than the mining claim.

[01:08:21] Speaker 00:
No, just that the claimants have to prove five acres at a time that they really need that land, not that it be limited to five acres in total.

[01:08:33] Speaker 04:
I'm sorry, I thought when Judge Cassis asked you what work is the five acres doing, you said default is it should be smaller than the mining claim, one quarter of the mining claim.

[01:08:43] Speaker 00:
Correct.

[01:08:43] Speaker 00:
The mining claim is default 20 acres and the mill site claim is default five acres.

[01:08:48] Speaker 00:
There is no limit on the number of.

[01:08:50] Speaker 04:
But how is that default consistent with your general view that the mill site can be infinity and the mining claim is always limited to 20?

[01:08:58] Speaker 00:
Your Honor, I don't maintain that the mill site could be infinity because of these other restrictions.

[01:09:03] Speaker 00:
there being none.

[01:09:04] Speaker 04:
Right, but I don't think that it's a very big restriction to say you have to use this for mining purposes.

[01:09:10] Speaker 04:
It can be a very large number.

[01:09:12] Speaker 04:
This ratio could be a hundred to one mill site to mine claim.

[01:09:17] Speaker 04:
It could be a thousand to one as long as you're using it from milling and mining purposes.

[01:09:23] Speaker 00:
We do believe that that is the correct reading of the statutory text, that it does not limit

[01:09:27] Speaker 00:
the number of mill site locations that may be located.

[01:09:30] Speaker 04:
I understand it just seems to be inconsistent with your explanation for why there's a five acre limit to begin with.

[01:09:36] Speaker 00:
I don't believe it's inconsistent, Your Honor, because of this requirement of mineralized land for mining claims versus non-mineralized land, which again can be put to other uses.

[01:09:45] Speaker 00:
So the burden is on claimant to show that each five acres is necessary.

[01:09:50] Speaker 00:
Now, I think there's, it's also, I'm sorry, I'm seeing over my time.

[01:09:54] Speaker 05:
Council, in 1872,

[01:09:57] Speaker 05:
If there was no occasion for mill sites to be multiplied and to extend over large tracts of large acreage, then isn't it likely that the Congress just never contemplated that these be multiplied to the hundreds or thousands?

[01:10:21] Speaker 00:
Your honor, it's possible that Congress did not contemplate such a large area as eventually was needed, but as Mr. Toth pointed out.

[01:10:28] Speaker 05:
This is a point that I think supports you.

[01:10:33] Speaker 05:
Congress didn't anticipate that, but didn't put a limit on it.

[01:10:36] Speaker 05:
They just had no reason to think there should be a limit.

[01:10:40] Speaker 00:
I think that's correct, your honor.

[01:10:42] Speaker 00:
The whole purpose of the mining law was to promote the use of federal public land to obtain mineral resources.

[01:10:49] Speaker 00:
And it was the case back then that there were large loads and there were large operations to recover those resources.

[01:10:59] Speaker 00:
Whether or not the intent was for a specific number is immaterial because the language of the statute simply does not restrict mill site claimants to one five acre mill site.

[01:11:14] Speaker 00:
There are no other questions.

[01:11:16] Speaker 00:
I can conclude.

[01:11:18] Speaker 06:
Judge Pinn, anything else?

[01:11:20] Speaker 06:
Judge Ginsburg?

[01:11:21] Speaker 06:
No, thank you.

[01:11:23] Speaker 06:
You want a sentence or two?

[01:11:24] Speaker 06:
Or we understand your position.

[01:11:26] Speaker 00:
I'll conclude.

[01:11:27] Speaker 00:
Thank you.

[01:11:28] Speaker 00:
So appellants aim in pursuing this case as plain.

[01:11:31] Speaker 00:
They seek to prevent mining claims from being mined.

[01:11:33] Speaker 00:
But this is an obstructionist reading of the mining law that eviscerates Congress's intent in passing it, revealing the fallacy of the argument.

[01:11:40] Speaker 00:
As such, we believe appellants' appeal should be denied and the district court's judgment affirmed.

[01:11:44] Speaker 00:
Thank you.

[01:11:45] Speaker 06:
Thank you.

[01:11:47] Speaker 06:
Mr. Flynn, we'll give you two minutes.

[01:11:50] Speaker 07:
Okay.

[01:11:50] Speaker 07:
Thank you, Your Honor.

[01:11:51] Speaker 07:
First on standing.

[01:11:52] Speaker 07:
Can you hear me?

[01:11:54] Speaker 05:
Yes.

[01:11:55] Speaker 07:
Okay.

[01:11:56] Speaker 07:
First on standing, the Melton declaration for the mine outside of Crested Butte was filed when there were mill sites proposed.

[01:12:04] Speaker 07:
They're still proposed at that mine.

[01:12:06] Speaker 07:
And she specifically linked the lack of agency discretion over that mine based on the 2003 mill site rule.

[01:12:13] Speaker 07:
And so they said we didn't raise mill sites in any of our declarations.

[01:12:17] Speaker 07:
The Melton Declaration flat out says that.

[01:12:20] Speaker 07:
The Hartman is later, but the Melton Declaration is specifically on point.

[01:12:25] Speaker 07:
You know, the industry's argument at the end that we're making some policy argument now, we're making an argument on the language in 1872 and the congressional intent.

[01:12:36] Speaker 07:
Also the presumption, now the Department of Justice referenced the Leo Sheep case.

[01:12:41] Speaker 07:
If you go to that decision,

[01:12:43] Speaker 07:
It's 99th Supreme Court at page 1411.

[01:12:47] Speaker 07:
It says the presumption in favor of limiting the grant, quote, when the act operates is manifestly clearly the intention of Congress.

[01:13:00] Speaker 07:
I think the other two attorneys on the other side basically said, well, this is ambiguous and we have to defer to under Chevron stuff too.

[01:13:09] Speaker 07:
But if they say it's ambiguous,

[01:13:12] Speaker 07:
then it's not clear.

[01:13:13] Speaker 07:
We think it's clear that they limited the amount of time, and so therefore they have to apply that presumption.

[01:13:20] Speaker 07:
And lastly, we didn't hear any new evidence.

[01:13:24] Speaker 07:
I think Judge Pan talked about this.

[01:13:26] Speaker 07:
We've got a few decades of field offices in Nevada and Idaho saying you get as much as you need, as much as you want, and you do.

[01:13:33] Speaker 07:
That's not in the law.

[01:13:34] Speaker 07:
I think history matters here, Your Honors, and I think we have to look at the, going to Judge Ginsburg, saying Congress did not contemplate doing this.

[01:13:43] Speaker 07:
The agency just can't manufacture a congressional intent that did not exist in 1872, and we think based on the law, that's, we respectfully ask the court to

[01:13:55] Speaker 07:
reverse the district court to send it at a minimum, do a rulemaking complies with APA and NEPA.

[01:14:00] Speaker 07:
And of course, with instructions on the proper interpretation of 1872, as if this was the Supreme Court in 1872.

[01:14:07] Speaker 07:
So thank you for the, for the extra time, Your Honor, very much.

[01:14:13] Speaker 06:
Judge Pan, anything else?

[01:14:16] Speaker 06:
No.

[01:14:17] Speaker 06:
Judge Ginsburg.

[01:14:18] Speaker 05:
No, thank you.

[01:14:19] Speaker 06:
Okay.

[01:14:20] Speaker 06:
Thanks, Mr. Flynn.

[01:14:21] Speaker 06:
The case is submitted.